Kiobel and Mohamad

On Monday, the Supreme Court granted certiorari in two cases involving the liability of corporations in U.S. courts for human rights violations abroad. In the first case, Kiobel v. Royal Dutch Petroleum, Nigerian nationals sued three oil companies, alleging that the companies enlisted the Nigerian government to use its military to suppress local opposition to oil exploration in the Niger Delta. In Mohamad v. Rajoub, the family of a U.S. citizen seeks to sue the Palestinian Authority, alleging that the victim was tortured to death by the Authority in 1995.

The cases require the Court to interpret two statutes, the Alien Tort Statute of 1789 and the Torture Victim Protection Act. The Alien Tort Statute authorizes “any civil action” in U.S. courts for violation of international law or U.S. treaties. The Torture Act implements a U.N. Convention and allows suit against any “individual” acting under the authority of a government. In both cases, the lower courts held that the statute applied only to natural persons – not to a corporation (in Kiobel) or an organization (in Mohamad).

Kevin Russell– 0 Promoted Comments

Tom Goldstein– 0 Promoted Comments

I’m not in a position to comment on the merits of the case, but intuitively this is going to be a pivot point for the more conservative members of the Court. It’s not that they are “pro-corporation” — in my opinion, it’s silly to say that they would be more likely to hold a person liable than a company. Rather, they will have intuitive doubts that Congress wrote a statute to reach that activity. Of course, it may be possible to overcome those doubts.

Jonathan Kaufman– 1 Promoted Comment

When you say the Court may not feel comfortable with holding that Congress meant to “reach that activity,” I assume you don’t mean that they’ll have a problem with applying the Alien Tort Statute to conduct like official torture and extrajudicial killing. The Supreme Court’s decision in Sosa already allows for the Alien Tort Statute to reach certain types of violations of international human rights law, and it’s pretty well established that the human rights abuses alleged in Kiobel fall within the Sosa requirements for clear definition and universality.

Corporate liability is not a question of the conduct covered, but rather of the scope of liability. The nature of the defendant as a natural vs. legal person has never been part of the definition of a human rights abuse, although the jurisdictional scope of particular international tribunals has been limited on that basis. In other words, remedial options aside, crimes against humanity are crimes against humanity, regardless of whether they’re committed by natural or legal persons. Given this, are you saying that you don’t think corporate liability is going to be the big issue after all?

As far as I can see, the only part of the conduct issue that is even remotely controversial at this point in ATS jurisprudence is the question of whether the ATS reaches conduct that occurred abroad. This is an argument that has been raised repeatedly by corporate defendants in ATS cases, and they’ve generally lost. The Sosa majority may not have expressly said that the Statute covers extraterritorial conduct, but it did speak approvingly of cases like Kadic and Filartiga where the conduct was entirely extraterritorial. Sosa’s note that it would consider a domestic exhaustion requirement in appropriate cases would be meaningless if the statute didn’t cover extraterritorial conduct. Plus, the ATS was meant to provide a remedy against pirates (among others), whose actions were almost always outside the territorial jurisdiction of the United States.

More importantly, it’s not like it’s unusual for U.S. courts to rule on matters that took place abroad. U.S. courts can always adjudicate the extraterritorial torts of persons over whom they have personal jurisdiction — that’s the basis of the transitory tort doctrine that underlies our system of civil liability. Of course, choice of law may point to the legal regime of a foreign country, but in the case of the ATS, the choice of law is already decided — the substance comes from the law of nations, and the contours of the remedy come from federal common law. And the Restatement makes clear that it’s appropriate for U.S. courts to exercise prescriptive extraterritorial jurisdiction for matters of “universal concern,” including violations of international human rights norms.

Michael Williams– 2 Promoted Comments

I take your comment to mean that the Court will have doubts that the ATS is written to reach extraterritorial activities. In the ordinary case, I would agree with you. But at least in the case of the ATS, I think there are a few things that suggest that the statutes does indeed reach extraterritorial conduct.

First, there are certain unique checks in the realm of ATS law that temper the typical concerns with extraterritoriality. In particular, the Supreme Court suggested in Sosa that ATS plaintiffs might need to exhaust local remedies before bringing an ATS claim. This exhaustion requirement could temper any undue “U.S. interference” in matters of foreign concern, making extraterritorial application more appropriate.

Second, the ATS’s reference to the “law of nations” indicates extraterritorial application. International law scholars of the time (and Blackstone) seemed to agree that nations had an obligation to punish individuals who violated this body of law, wherever the individual may be found. Thus, it’s reasonable that the statute would likewise contemplate jurisdiction to enforce the law. Notably, this case does NOT involve the jurisdiction to prescribe AND enforce, as in the recent Morrison case. (Put another way, the presumption against extraterritoriality might not apply in the same way to this purely jurisdictional statute.)

Third, there is a tiny bit of contemporaneous evidence of a Congressional intent to make the ATS applicable abroad. I won’t go into all that here.

And lastly, a minor point: even the Supreme Court seems to read the ATS with an eye towards the Second Circuit’s decision in Filartiga v. Pena-Irala (the case that essentially created modern ATS doctrine). Filartiga embraced the idea that the ATS applied extraterritorially. That probably counts for something.

Kevin Russell– 0 Promoted Comments

Kevin Russell– 0 Promoted Comments

The text of the Torture Act refers to an “individual.” Last term, the Court held that a corporation does not have a right to “personal privacy,” within the meaning of the Privacy Act, rejecting AT&T’s argument that it because corporations can be “persons” in many contexts the statute should be understood to protect corporations’ privacy interests. The Court made much of the statutory difference between a “person” and “personAL” privacy interests. But it did not particularly question that a corporation could fall within the term “person.” The question here is whether there is a significant distinction in our legal traditions between referring to a corporation as a “person” and referring to it as an “individual.” That linguistic issue is plainly just one part of the argument, but it will likely be a crucial one.

Aaron Tang– 0 Promoted Comments

It seems to me like the plaintiff has a better statutory argument in Kiobel than in Mohamad. In Mohamad, the statute creates “a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.” We can say whatever we want to say about the policy reasons for allowing an action against a terrorist organization as opposed to an individual in that organization, but Congress used the word “individual” and not “entity” or “individual or organization” and I would imagine the Court will want to give effect to the actual words Congress used. If the Court so holds, Congress could easily amend the statute to encompass terrorist organizations.

In the Kiobel case, by contrast, the statute provides a cause of action “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” So the plain text merely incorporates other provisions of international law. I don’t profess to be an expert of international law, but it seems to me that Judge Leval’s concurring opinion in the Second Circuit is right that a corporation could be held liable (at least in a civil action) under international law. Now, I suppose the Court could adopt something of a clear statement requirement in this case and declare that incorporation of another body of law allowing a cause of action against a corporation is not “clear enough” but absent that, I think Kiobel is more an open question than Mohamad…

Marco Simons– 1 Promoted Comment

I agree that Leval is right about the contours of international law under the Alien Tort Statute. But the argument under the Torture Victim Protection Act is also strong: the Court decided in Clinton v. New York that “individual” could include corporations, and in this case there is express legislative history that states that the term “individual” was chosen for the purpose of excluding foreign states as defendants.

– 0 Promoted Comments

Is vicarious liability a possible avenue to corporate liability, even if the court were to find that corporations are not persons for purposes of TVPA or the ATS? Would the answer to this depend on the extent to which the concept of vicarious liability is itself a form of customary international law, or rather would the U.S. generated common law concept be the controlling rule in ATS cases seeking to hold corporations liable for violations of the law of nations?

Kevin Russell– 0 Promoted Comments

Kevin Russell– 0 Promoted Comments

In this thread, discuss the potential foreign policy implications of a ruling in favor, or against, the plaintiffs and whether those concerns should have a role in the Court’s decision making. Also, should the Court give any special deference to the executive branch’s views on this question of statutory construction, given those foreign policy implications?

– 3 Promoted Comments

The ATS and TVPA raise complex jurisdictional issues for American courts, with the ATS particularly problematic in terms of interpretation. The primary question, as I see it, is to what extent should the courts incorporate international norms into federal “common law”? Treaties, passed under the authority of the Treaty Clause and incorporated into the law of the United States through the Supremacy Clause, are a relatively easy matter. However, this is not the case with the “law of nations” to which the ATS refers.

In 1789, when Congress passed the ATS as part of the Judiciary Act, customary international law was quite limited in scope. It primarily addressed piracy, diplomacy, and safe conduct. In the second half of the 20th century, international law ballooned into a complex system with many juridical uncertainties. The Supreme Court’s interpretation of the ATS in Sosa v. Alvarez-Machain still lends itself to considerable uncertainty and is far from definitive. Indeed, with a constantly-evolving body of international law, what exactly constitutes the “law of nations”?

There is another definitional problem. The Second Circuit noted in Kiobel that the scope of liability under the law of nations is defined by customary international law itself. This interpretation creates a peculiar situation where the nature of a cause of action and its scope is determined by law exclusively external to that of the United States. Does the ATS indeed breach the wall of separation between domestic law (including treaties through the Supremacy Clause) and purely customary international law? This is of course an interpretational matter, albeit one with no ready answer.

***

Because of this uncertainty, the courts find themselves in foreign policy-making territory in adjudicating many of the cases under the ATS (and TVPA), to the extent that their rulings can have international implications. As the Court recognized in Sosa, it cannot escape this situation, and therefore created a possible prudential safety valve to its “universality, obligatory nature, and specificity” test.

My intuition is that courts should generally not concern themselves with the foreign policy implications of their decisions, simply because foreign policy is outside the scope of their constitutional domain. The Court rightly – if not very satisfyingly in that specific case – recognized this principle in Goldwater v. Carter. And if a decision may run counter to executive or congressional foreign policy aims, the solution is a simple statutory amendment.

The Court may certainly consider executive interpretation as to the statutory construction of the relevant provisions. But this interpretation should not be definitive, especially as it can easily evolve with time and regular political changes in administrations. Ultimately, there is no easy way out (nor should there be) for the Court, aside from good old-fashioned statutory interpretation to the best of its ability.

Marco Simons– 1 Promoted Comment

I agree that the courts generally should not be concerned with the foreign policy implications of their decisions, except when the strict conditions of a doctrine such as political question or the act of state are satisfied. But, even in cases that arguably have foreign policy implications, I don’t think it’s the ATS that actually creates any foreign policy problems.

What the ATS does is allow many cases involving international issues to be heard in the federal courts. Kiobel could have been filed as an ordinary state court lawsuit, and in fact most ATS suits – including Wiwa v. Royal Dutch Petroleum, to which Kiobel is a companion – include ordinary domestic law common law claims alongside ATS claims.

The choice, therefore, is not between having such cases heard in U.S. courts or not, but having them heard in federal courts which may be better equipped to analyze any foreign policy concerns which may arise, or having them heard in state courts as ordinary transitory tort cases.

I also wouldn’t agree that anything under the ATS is determined by law external to the United States. As the Supreme Court reiterated in Sosa, international law is in fact part of U.S. law. And the nature of the norms in ATS cases – that they must be universally recognized as obligatory rules – means that it would be very difficult to bring an ATS case where the U.S. has not already recognized (in the abstract) the rule of international law at issue.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.